Brown v State of New York, 2015 NY Slip Op 03118 [127 AD3d 906]

April 15, 2015

Appellate Division, Second Department

[*1]

Helen Brown, Appellant,

v

State of New York et al., Respondents.

Julio J. Marino, Great Neck, N.Y. (Salvatore R. Marino of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Jason Harrow of counsel), for respondents.

In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Scuccimarra, J.), dated October 24, 2013, which, upon a decision of the same court dated October 1, 2013, made after a nonjury trial on the issue of liability, is in favor of the defendants and against her dismissing the claim.

Ordered the judgment is affirmed, with costs.

On November 4, 2010, the claimant allegedly sustained injuries when she fell in a hole containing water on a pedestrian bridge over Nepperhan Avenue in the City of Yonkers. The claimant commenced this claim against the defendants, State of New York and New York State Department of Transportation, alleging that her fall was caused by inadequate maintenance of the pedestrian bridge. The claim proceeded to a nonjury trial on the issue of liability, after which a judgment was entered in favor of the defendants and against the claimant dismissing the claim.

Contrary to the claimant’s contention, the Court of Claims properly dismissed the claim, since the claimant failed to establish, by a preponderance of the evidence, that the defendants had a duty to maintain the subject pedestrian bridge. Pursuant to Highway Law § 349-c (2), the City of Yonkers had the responsibility for the maintenance of the subject bridge. Since the defendants were not obligated to maintain the bridge, they did not breach any duty owed to the claimant ( see Klenetsky v State of New York , 172 AD2d 646 [1991]). Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur..